New systematization of EU legal instruments in the Lisbon Treaty

1. New systematization of EU legal instruments in the Lisbon Treaty Tamara Ćapeta Professor of EU Law University of Zagreb, Faculty of Law 2011

2. Relevant provisions of the Lisbon TreatyEnumeration of acts Article 288 To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions. A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States. A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Recommendations and opinions shall have no binding force.

3. Relevant provisions of the Lisbon TreatyLegislative acts Article 289 1. The ordinary legislative procedure shall consist in the joint adoption by the European Parliament and the Council of a regulation, directive or decision on a proposal from the Commission. This procedure is defined in Article 294. 2. In the specific cases provided for by the Treaties, the adoption of a regulation, directive or decision by the European Parliament with the participation of the Council, or by the latter with the participation of the European Parliament, shall constitute a special legislative procedure. 3. Legal acts adopted by legislative procedure shall constitute legislative acts. 4. In the specific cases provided for by the Treaties, legislative acts may be adopted on the initiative of a group of Member States or of the European Parliament, on a recommendation from the European Central Bank or at the request of the Court of Justice or the European Investment Bank.

4. Relevant provisions of the Lisbon TreatyDelegated Acts Article 290 1. A legislative act may delegate to the Commission the power to adopt non-legislative acts of general application to supplement or amend certain non-essential elements of the legislative act. The objectives, content, scope and duration of the delegation of power shall be explicitly defined in the legislative acts. The essential elements of an area shall be reserved for the legislative act and accordingly shall not be the subject of a delegation of power. 2. Legislative acts shall explicitly lay down the conditions to which the delegation is subject; these conditions may be as follows: (a) the European Parliament or the Council may decide to revoke the delegation; (b) the delegated act may enter into force only if no objection has been expressed by the European Parliament or the Council within a period set by the legislative act. For the purposes of (a) and (b), the European Parliament shall act by a majority of its component members, and the Council by a qualified majority. 3. The adjective ‘delegated’ shall be inserted in the title of delegated acts.

5. Relevant provisions of the Lisbon TreatyImplementing Acts Article 291 1. Member States shall adopt all measures of national law necessary to implement legally binding Union acts. 2. Where uniform conditions for implementing legally binding Union acts are needed, those acts shall confer implementing powers on the Commission, or, in duly justified specific cases and in the cases provided for in Articles 24 and 26 of the Treaty on European Union, on the Council. 3. For the purposes of paragraph 2, the European Parliament and the Council, acting by means of regulations in accordance with the ordinary legislative procedure, shall lay down in advance the rules and general principles concerning mechanisms for control by Member States of the Commission's exercise of implementing powers. 4. The word ‘implementing’ shall be inserted in the title of implementing acts.

6. What is old/new in the Lisbon Treaty? • Old: • Types of acts remained the same: Regulation, Directive, Decision • New: • Division of legal acts into legislative and non-legislative • Division of non-legislative acts into delegated and implementing

7. Some history • New systematization – result of the work of the Working Group IX on simplification, which contributed to the Convention that drafted the Trety on the Constitution for Europe • Solution in Constitution differed in that it also introduced new acts: • European laws and European Framework Laws, as legislative acts and • Regulations and Decisions, as non-legislative acts

8. Relevant questions? • Why is this new division introduced? • Does it reflect the new distribution of powers between EU institutions? • Does it introduce new distribution of powers between EU institutions?

9. Legislative acts • Definition: act adopted by legislative procedure • legislative procedure: Default: EP + Council – ordinary legislative procedure But also: only Council; only EP – special legislative procedure

10. Legislative acts • What is legislative act in terms of substance? • Act by which essential elements of a policy must be regulated (by implication from definition of delegated act) • What is essential? • Who decides? • Is such decision justiciable? • Is this new?

11. Added value of naming these acts legislative? • More transparency: Council must open its sessions (Art. 16/8) TEU Valid both for acts adopted in ordinary and special legislative procedure

12. Added value of naming these acts legislative? • More democratic (input) legitimacy? Ordinary legislative procedure is the most democratic EU decision making procedure Still, in 31 situations, Treaty envisages adoption of legislative act by Council alone more democracy: not a result of naming acts legislative, but of submitting more issues to a co-decision procedure – would be achieved without new systematization

13. Added value of naming these acts legislative? • Introducing general hierarchy among EU institutions? Using the term legislative implies hierarchy between legislative and executive branch as existing in MS Has this happened in the EU institutional structure? If not, new systematization misleading to citizens

14. Non-legislative Acts • Delegated acts: acts of general application, whose purpose is to supplement or amend certain non-essential elements of the legislative act Adopted by the Commission • Implementing acts: No any definition in the Treaty Adopted by the Commission or the Council when uniform conditions for implementing legally binding Union acts are needed

15. Difference between delegation and implementation?

16. Difference between delegation and implementation? • If an act is adopted on the basis of legislative act by Commission and supplements the basic act, is this delegated or implementing act? • Not an easy answer, as shown by the revision of 250 legislative acts after 2006 comitology reform • In the end, this is political decision to be agreed among Commission, Council and the EP • Why is it important is something delegation or implementation?

17. Control of the Commission

18. Is this new? • Pre-Lisbon: • no distinction between different types of implementing measures • They were all submitted to comitology • EP not involved at all • 2006 - comitology reform • It introduced distinction between quasi-legislative measures and comitologystricto-sensu • For quasi-regulatory measures – new regulatory procedure with scrutiny applied: right to veto Commission measure by QM in Council or absolute majority in EP

19. Reality of EU decision-making • Yearly: (source: D. Guéguen, 2011) • cca 50 legislative measures • cca 500 delegated measures • cca 2000 implementing measures • Commission has exclusive right of initiative • If Council wants to amend, unanimity needed • Commission too big – collegiate nature lost – decision-making left to technocrats • Comitology is untransparent

20. Added value of new systematization? • In terms of simplification • In terms of democratization • In terms of transparency